Académique Documents
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JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
JONATHAN C. BOND
Assistant to the Solicitor
General
AUGUST E. FLENTJE
Special Counsel
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
The Constitution and Acts of Congress confer on the
President broad authority to prohibit or restrict the entry
of aliens outside the United States when he deems it in
the Nations interest. Exercising that authority, the
President issued Executive Order No. 13,780, 82 Fed.
Reg. 13,209 (Mar. 9, 2017). Section 2(c) of that Order
suspends for 90 days the entry of foreign nationals from
six countries that Congress or the Executive previously
designated as presenting heightened terrorism-related
risks, subject to case-by-case waivers. The district court
issued, and the court of appeals upheld, a preliminary
injunction barring enforcement of Section 2(c) against
any person worldwide, because both courts concluded
that the suspension violates the Establishment Clause.
The questions presented are:
1. Whether respondents challenge to the temporary
suspension of entry of aliens abroad is justiciable.
2. Whether Section 2(c)s temporary suspension of
entry violates the Establishment Clause.
3. Whether the global injunction, which rests on
alleged injury to a single individual plaintiff, is imper-
missibly overbroad.
(I)
PARTIES TO THE PROCEEDING
Petitioners (defendants-appellants below) are Donald
J. Trump, in his official capacity as President of the
United States; the United States Department of Home-
land Security; the Department of State; the Office of the
Director of National Intelligence; John F. Kelly, in his
official capacity as Secretary of Homeland Security;
Rex W. Tillerson, in his official capacity as Secretary of
State; and Daniel R. Coats, in his official capacity as
Director of National Intelligence.
Respondents (plaintiffs-appellees below) are the
International Refugee Assistance Project, a project of
the Urban Justice Center, Inc., on behalf of itself and its
clients; HIAS, Inc., on behalf of itself and its clients; the
Middle East Studies Association of North America,
Inc., on behalf of itself and its members; Muhammed
Meteab; Paul Harrison; Ibrahim Ahmed Mohomed;
John Doe #1; John Doe #3; and Jane Doe #2.
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Constitutional, statutory, and regulatory
provisions involved................................................................... 2
Statement:
A. Legal framework ............................................................. 2
B. The Executive Orders ..................................................... 5
C. Procedural history ........................................................... 8
D. Related litigation ........................................................... 12
Reasons for granting the petition:
I. The decision below is wrong ......................................... 13
A. Doe #1s challenge to Section 2(c) is not
justiciable ................................................................ 14
B. Section 2(c) does not violate the Establishment
Clause ...................................................................... 20
1. Section 2(c) is constitutional under Mandel
and Din .............................................................. 20
2. Section 2(c) is constitutional under domestic
Establishment Clause precedent ..................... 26
C. The global injunction against Section 2(c) is
vastly overbroad..................................................... 31
II. The decision below is in need of review ....................... 33
Conclusion ................................................................................... 35
Appendix A Court of Appeals Amended Opinion
(4th Cir. May 31, 2017) ................................ 1a
Appendix B District Court Memorandum Opinion
(D. Md. Mar. 16, 2017) ............................. 208a
Appendix C District Court Order
(D. Md. Mar. 16, 2017) ............................. 262a
Appendix D Constitutional, statutory, and
regulatory provisions .............................. 265a
(III)
IV
TABLE OF AUTHORITIES
Cases: Page
CasesContinued: Page
McCreary County v. ACLU of Ky.,
545 U.S. 844 (2005) ..................................................... 26, 27
McGowan v. Maryland, 366 U.S. 420 (1961) .............. 16, 17
Moss v. Spartanburg Cnty. Sch. Dist. Seven,
683 F.3d 599 (4th Cir.), cert. denied,
133 S. Ct. (2012) ............................................................... 18
Navy Chaplaincy, In re, 534 F.3d 756
(D.C. Cir. 2008), cert. denied,
556 U.S. 1167 (2009) ................................................... 19, 20
Reno v. American-Arab Anti-Discrim. Comm.,
525 U.S. 471 (1999) .......................................................... 22
Republican Party of Minn. v. White,
536 U.S. 765 (2002) .......................................................... 28
Saavedra Bruno v. Albright, 197 F.3d 1153
(D.C. Cir. 1999) ................................................................ 14
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) .......................................................... 33
Smith v. Jefferson Cnty. Bd. of Sch. Commrs,
641 F.3d 197 (6th Cir.), cert. denied,
565 U.S. 820 (2011) .......................................................... 17
Suhre v. Haywood County, 131 F.3d 1083
(4th Cir. 1997) .................................................................. 18
Texas v. United States, 523 U.S. 296 (1998) .................... 16
United States v. Chemical Found., Inc.,
272 U.S. 1 (1926) .............................................................. 29
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) .......................................................... 14
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ........................................................ 2, 3
Valley Forge Christian Coll. v. Americans United
for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .......................................................... 18
VI
CasesContinued: Page
Washington v. Trump:
No. 17-141, 2017 WL 462040
(W.D. Wash. Feb. 3, 2017) ....................................... 5
847 F.3d 1151 (9th Cir. 2017) ........................................ 5
Amended Order, No. 17-35105
(9th Cir. Mar. 17, 2017) ................... 12, 25, 28, 29, 30
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .............................................................. 33
Zadvydas v. Davis, 533 U.S. 678 (2001) ........................... 22
Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ...................................................... 22
Constitution, statutes, and regulations:
U.S. Const.:
Art. II, 1, Cl. 8 ........................................................... 28
Art. III ..................................................................... 16, 31
Amend. I (Establishment Clause) ............ passim, 265a
Immigration and Nationality Act,
8 U.S.C. 1101 et seq. .......................................................... 3
8 U.S.C. 1101(a)(42) ....................................................... 5
8 U.S.C. 1104(a)(1) ....................................................... 14
8 U.S.C. 1152(a)(1)(A) ........................................... 9, 265a
8 U.S.C. 1157 .................................................................. 5
8 U.S.C. 1181 .................................................................. 3
8 U.S.C. 1182(a)(3)(B) ......................................... 24, 270a
8 U.S.C. 1182(a)(7)(A)(i) ................................................ 3
8 U.S.C. 1182(a)(7)(B)(i)(II) .......................................... 3
8 U.S.C. 1182(a)(7)(B)(iv) .............................................. 3
8 U.S.C. 1182(f) ..................................... 1, 4, 22, 24, 276a
8 U.S.C. 1185(a)(1) ............................................ 2, 4, 277a
8 U.S.C. 1187 (2012 & Supp. III 2015).......................... 3
8 U.S.C. 1187(a)(12)(A)(i) (Supp. III 2015) .................. 3
VII
MiscellaneousContinued: Page
Dan Merica, Trump Signs Executive Order to Keep
Out Radical Islamic Terrorists, CNN.com
(Jan. 30, 2017), https://goo.gl/dMZEvO ............................ 31
Letter from Jefferson B. Sessions III,
Atty Gen., & John Francis Kelly,
Secy of Homeland Sec., to President Donald J.
Trump (Mar. 6, 2017), https://goo.gl/H69g8I ................... 6
U.S. Dept of State, Country Reports on Terrorism
2015 (June 2016), https://goo.gl/40GmOS.............................3
In the Supreme Court of the United States
No.
DONALD J. TRUMP, ET AL., PETITIONERS
v.
INTERNATIONAL REFUGEE ASSISTANCE PROJECT,
A PROJECT OF THE URBAN JUSTICE CENTER, INC.,
ON BEHALF OF ITSELF AND ITS CLIENTS, ET AL.
(1)
2
JURISDICTION
The judgment of the court of appeals was entered on
May 25, 2017. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED
Pertinent constitutional, statutory, and regulatory
provisions are reproduced in the appendix to this peti-
tion. App. 265a-312a.
STATEMENT
The Constitution and Acts of Congress confer on the
President broad authority to suspend or restrict the
entry of aliens outside the United States when he deems
it in the Nations interest. See United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950);
8 U.S.C. 1182(f), 1185(a)(1). Exercising that authority,
and after consulting with the Secretaries of State and
Homeland Security and the Attorney General, the Pres-
ident placed a temporary 90-day pause (subject to indi-
vidualized waivers) on the entry of certain foreign
nationals from six countries that are sponsors or shel-
ters of terrorism, and that Congress or the Executive
previously had designated as presenting heightened
terrorism-related risks. The district court entered a
global injunction barring enforcement of the Presidents
action. App. 262a-264a. The court of appeals affirmed
on the basis that the Presidents stated national secu-
rity interest was provided in bad faith, as a pretext for
its religious purpose. App. 45a; see App. 38a-65a.
A. Legal Framework
The exclusion of aliens is a fundamental act of sov-
ereignty that lies in the legislative power and also is
inherent in the executive power to control the foreign
3
1
U.S. Dept of State, Country Reports on Terrorism 2015, at 6, 299-
302 (June 2016), https://goo.gl/40GmOS; see 8 U.S.C. 1187(a)(12)(A)(i)
and (ii) (Supp. III 2015); App. 7a n.4.
4
2
DHS, DHS Announces Further Travel Restrictions for the Visa
Waiver Program (Feb. 18, 2016), https://goo.gl/OXTqb5; App. 7a n.4.
5
16, 2017, App. 311a ( 14). 3 The Order revoked the Janu-
ary Order, App. 311a ( 13), replacing it with significantly
revised provisions that address the Ninth Circuits con-
cerns.
At issue here is Section 2(c) of the Order, which tem-
porarily suspends entry of nationals from six countries:
Iran, Libya, Somalia, Sudan, Syria, and Yemen. The sus-
pensions explicit purpose is to enable the President
based on the recommendation of the Secretary of Home-
land Security, in consultation with the Secretary of State
and Director of National Intelligenceto assess whether
those countries (and others) are providing adequate infor-
mation to prevent infiltration by foreign terrorists.
App. 299a ( 2(c)); see App. 295a-296a, 298a-299a ( 1(f),
2(a)-(c)). The Order explains that each of the six coun-
tries is a state sponsor of terrorism, has been signifi-
cantly compromised by terrorist organizations, or con-
tains active conflict zones, which is why Congress and
the Executive previously designated them. App. 292a
( 1(d)); see App. 289a-290a ( 1(b)(i)). The Order details
the circumstances of each country that both give rise to
heightened risks of terrorism and diminish their gov-
ernments willingness or ability to share or validate
important information about individuals needed to
screen them properly. App. 292a-295a ( 1(d)-(e)). 4
3
See Letter from Jefferson B. Sessions III, Atty Gen., & John
Francis Kelly, Secy of Homeland Sec., to President Donald J.
Trump (Mar. 6, 2017), https://goo.gl/H69g8I.
4
Although the January Orders suspension had included Iraq, the
Order omits Iraq from the suspension because of the close coopera-
tive relationship between the U.S. and Iraqi governments, and
because, since the January Order, the Iraqi government has
expressly undertaken steps to supply information necessary to help
identify possible threats. App. 296a ( 1(g)); see App. 304a ( 4).
7
5
See Bureau of Consular Affairs, U.S. Dept of State, Executive
Order on Visas (Mar. 22, 2017), https://goo.gl/HoNiNz; DHS, Q&A:
Protecting the Nation from Foreign Terrorist Entry to the United
States (Mar. 6, 2017), https://goo.gl/WtVwTu.
8
C. Procedural History
1. Respondentssix individuals and three organiza-
tionssubsequently filed their operative complaint
challenging the Order under the INA and the Estab-
lishment Clause, and moved to enjoin[] [the Order] in
its entirety. D. Ct. Doc. 95, at 1 (Mar. 11, 2017); see
C.A. App. 254-258. The individual respondents are U.S.
citizens or lawful permanent residents who claim that
the Order will prevent or delay a foreign-national family
member from entering the United States. Four individ-
ualsJohn Doe #1, Jane Doe #2, John Doe #3, and Paul
Harrisonallege that Section 2(c) would prevent family
members from obtaining visas. C.A. App. 213-214,
245-252. The other twoMuhammed Meteab and Ibra-
him Mohomedallege that family members would be
denied or delayed admission under the Refugee Pro-
gram. C.A. App. 249-250, 252.
One organization, the Middle East Studies Associa-
tion of North America, Inc. (MESA), alleges that Section
2(c) will prevent its members abroad from traveling to
the United States for conferences, deter U.S. members
from conducting work abroad, and prevent foreign schol-
ars from attending MESAs annual meeting in the U.S.
C.A. App. 213, 243-245. The other twothe Interna-
tional Refugee Assistance Project (IRAP) and HIAS,
Inc.principally provide resettlement services to refu-
gees and assert injury based on the refugee provisions.
C.A. App. 210-213, 235-243.
2. After expedited briefing and argument, the dis-
trict court enjoined Section 2(c), but not other chal-
lenged provisions. App. 208a-264a. It held that three
individual respondents (Does #1-3) have standing to
challenge Section 2(c) on statutory grounds, App.
222a-227a, but are not likely to succeed on their claim
9
6
Although the court of appeals correctly recognized that no
injunction could run against the President himself, App. 73a, the
President remains injured by the injunction because it prevents the
Executive Branch from carrying out his Order.
12
D. Related Litigation
Litigation over both Orders also has continued in
other courts. In Washington, the Ninth Circuit denied
reconsideration en banc of the panels decision declining
to stay an injunction against the January Order, over the
dissent of five judges who issued three separate opinions.
Amended Order, Washington v. Trump, No. 17-35105
(9th Cir. Mar. 17, 2017). As relevant here, Judge Bybee
explained that Mandel provides the governing test for
judging executive and congressional action [for] aliens
who are outside our borders and seeking admission. Id.,
slip op. 11 (Bybee, J., dissenting from denial of reconsid-
eration en banc) (Washington Bybee Dissent). Judge
Kozinski opined that using campaign and other unofficial
statements made outside the process of crafting an offi-
cial policy to establish unconstitutional motives is
unprecedented, unworkable, and produces absurd
result[s]. Id., slip op. 5, 6 (Kozinski, J., dissenting from
denial of reconsideration en banc) (Washington Kozinski
Dissent).
On March 15, 2017, a district court in Hawaii entered a
temporary restraining order against all of Sections 2 and
6 of the Orderincluding provisions that concern only
internal and diplomatic government activities. Hawaii v.
Trump, No. 17-50, 2017 WL 1011673 (D. Haw.). The court
has since converted that order to a preliminary injunc-
tion. Hawaii v. Trump, No. 17-50, 2017 WL 1167383
(D. Haw. Mar. 29, 2017). The governments appeal of that
injunction and request for a stay are currently pending
before the Ninth Circuit, Hawaii v. Trump, No. 17-15589,
which heard argument on May 15, 2017.
13
REASONS FOR GRANTING THE PETITION
At the behest of a single individual plaintiff (John
Doe #1), the divided en banc court of appeals affirmed
a global injunction against a formal national-security
determination by the President, made after consulta-
tion with the Secretaries of State and Homeland Secu-
rity and the Attorney General. The court did not dis-
pute that the President acted at the height of his powers
in instituting Section 2(c)s temporary pause on entry
by nationals from certain countries that sponsor or shel-
ter terrorism. Nor did it dispute that Section 2(c)s text
and operation are religion-neutral: its temporary pause
applies to certain nationals of the designated countries
without regard to religion. As respondents conceded
below, Section 2(c) could be constitutional if issued by
some other President. But it is likely unconstitutional
here, the court held, because the Presidents stated
national security interest was provided in bad faith,
as a pretext for its religious purpose. App. 45a (empha-
ses added). That remarkable holding is wrong and in
manifest need of this Courts review.
I. THE DECISION BELOW IS WRONG
The court of appeals found that one individual plain-
tiff, Doe #1, has standing to challenge Section 2(c). But
his claim is not justiciable: he does not seek to vindicate
his own Establishment Clause rights based on action
directed against him, and he lacks any imminent injury.
In any event, his claim fails on the merits. This Court
has never invalidated religion-neutral government
action based on speculation about officials subjective
motivations drawn from campaign-trail statements by a
political candidate. And even if Doe #1 could clear that
hurdle, he still could obtain only an injunction to redress
his alleged injurynot a global injunction barring
14
7
The court of appeals correctly did not hold that any other
respondent has standing to challenge Section 2(c). Harrisons fianc
and Doe #3s wife were issued visas and so are not affected by the
Order. Govt C.A. Br. 19 n.6; Resps. C.A. Supp. App. 819. Jane Doe
#2 is petitioning for her sister, but there is a multi-year backlog for
immigrant-visa numbers for U.S. citizens siblings. Govt C.A. Br.
19 & n.7. The remaining individual respondents seek admission of
relatives as refugeesa process not affected by Section 2(c). App.
15a-16a. IRAP and HIAS likewise assert standing based on the
Orders provisions addressing refugees, and MESA asserts stand-
ing based on a members alleged inability to attend a meeting in
November 2017, after the 90-day suspension would end. See p. 8,
supra; Govt C.A. Br. 25. None of the organizations has identified a
member or client whom Section 2(c) would bar from entering.
16
8
Although McGowan held that an Establishment Clause chal-
lenge can be based on economic injuries in certain circumstances,
that holding is inapposite because the challengers there were
direct[ly] subjected to (indeed, prosecuted under) a Sunday-closing
law, which regulated their own conduct and infringed their own free-
dom from religious compulsion. See 366 U.S. at 422, 430-431.
Respondents, in contrast, are not directly subject to the Orders sus-
pension, which applies only to certain aliens abroad.
18
9
See Moss v. Spartanburg Cnty. Sch. Dist. Seven, 683 F.3d 599,
607 (4th Cir.) (public high-school student and parent had standing
to challenge school policy granting course credit for private reli-
gious education and was promoted to them in letter from parochial
school), cert. denied, 133 S. Ct. 623 (2012); Suhre v. Haywood
County, 131 F.3d 1083, 1084-1085 (4th Cir. 1997) (county resident
had standing to challenge Ten Commandments display in courtroom
of county courthouse); Catholic League for Religious & Civil Rights
v. City & County of San Francisco, 624 F.3d 1043, 1047, 1052-1053
(9th Cir. 2010) (en banc) (city residents had standing to challenge
city resolution condemning certain actions and beliefs of Catholic
Church), cert. denied, 563 U.S. 974 (2011); Awad v. Ziriax, 670 F.3d
1111, 1117-1118, 1122-1123 (10th Cir. 2012) (state resident could
challenge state constitutional amendment presented to voters for-
bidding state courts from considering Sharia Law).
19
10
Mandels substantive standard applies to challenges to decisions
to deny visas to aliens seeking entry. It does not govern every issue
concerning immigrationsuch as post-removal detention, Zadvydas
v. Davis, 533 U.S. 678 (2001), or the procedure for exercising legisla-
tive power over the suspension of deportation of aliens present in the
United States, INS v. Chadha, 462 U.S. 919 (1983).
23
11
In Board of Education of Kiryas Joel Village School District v.
Grumet, 512 U.S. 687 (1994), it was undisputed that the legisla-
ture knew when it created a special school district that its bounda-
ries were drawn specifically to include only members of one reli-
gious sect. Id. at 699 (opinion of Souter, J.); id. at 729 (Kennedy, J.,
concurring in the judgment) (law constituted explicit religious ger-
rymandering). Likewise, Lukumi held that the local ordinances
text and operation showed that they were a religious gerry-
mander. 508 U.S. at 535 (citation omitted).
29
12
Dan Merica, Trump Signs Executive Order to Keep Out Radical
Islamic Terrorists, CNN.com (Jan. 30, 2017), https://goo.gl/dMZEvO.
32
13
App. 312a ( 15(a)) (If the application of any provision [of the
Order] to any person or circumstance[] is held to be invalid, * * *
the application of [the Orders] other provisions to any other per-
sons or circumstances shall not be affected.).
33
* * * * *
This Order has been the subject of passionate political
debate. But whatever ones views, the precedent set by
this case for the judiciarys proper role in reviewing
the Presidents national-security and immigration
authority will transcend this debate, this Order, and this
constitutional moment. Precisely in cases that spark
such intense feelings, it is all the more critical to adhere
to foundational legal rules. The decision below departs
from those rules, and calls into question the Executive
and his authority in a way that warrants this Courts
review.
35
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
JONATHAN C. BOND
Assistant to the Solicitor
General
AUGUST E. FLENTJE
Special Counsel
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys
JUNE 2017
APPENDIX A
No. 17-1351
INTERNATIONAL REFUGEE ASSISTANCE PROJECT,
A PROJECT OF THE URBAN JUSTICE CENTER, INC.,
ON BEHALF OF ITSELF AND ITS CLIENTS; HIAS, INC.,
ON BEHALF OF ITSELF AND ITS CLIENTS; MIDDLE EAST
STUDIES ASSOCIATION OF NORTH AMERICA, INC.,
ON BEHALF OF ITSELF AND ITS MEMBERS; MUHAMMED
METEAB; PAUL HARRISON; IBRAHIM AHMED
MOHOMED; JOHN DOES #1 & 3; JANE DOE #2,
PLAINTIFFS-APPELLEES
v.
DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS
PRESIDENT OF THE UNITED STATES; DEPARTMENT OF
HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE
OF THE DIRECTOR OF NATIONAL INTELLIGENCE; JOHN
F. KELLY, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
HOMELAND SECURITY; REX W. TILLERSON, IN HIS
OFFICIAL CAPACITY AS SECRETARY OF STATE; DANIEL
R. COATS, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF
NATIONAL INTELLIGENCE, DEFENDANTS-APPELLANTS
(1a)
2a
Affirmed in part, vacated in part by published opinion.
Chief Judge Gregory wrote the opinion, in which Judges
Motz, King, Wynn, Diaz, Floyd, and Harris joined in
full. Judge Traxler wrote an opinion concurring in the
judgment. Judge Keenan wrote an opinion concurring
in part and concurring in the judgment, in which Judge
Thacker joined except as to Part II.A.i. Judge Wynn
wrote a concurring opinion. Judge Thacker wrote a
concurring opinion. Judge Niemeyer wrote a dissenting
opinion, in which Judges Shedd and Agee joined.
Judge Shedd wrote a dissenting opinion, in which
Judges Niemeyer and Agee joined. Judge Agee wrote
a dissenting opinion, in which Judges Niemeyer and
Shedd joined.
1
Judges Motz, King, Wynn, Diaz, Floyd, and Harris join this
opinion in full, Judge Traxler concurs in the judgment, and Judges
Keenan and Thacker concur in substantial part and concur in the
judgment.
3a
2
According to the Pew Research Center, Iraqs population is
99% Muslim, Irans is 99.5%, Libyas is 96.6%, Sudans is 90.7%,
Somalias is 99.8%, Syrias is 92.8%, and Yemens is 99.1%. See
Pew Res. Ctr., The Global Religious Landscape 45-50 (2012).
5a
3
Section 2(c) reads in full:
To temporarily reduce investigative burdens on relevant agen-
cies during the review period described in subsection (a) of this
section, to ensure the proper review and maximum utilization of
available resources for the screening and vetting of foreign
nationals, to ensure that adequate standards are established to
prevent infiltration by foreign terrorists, and in light of the
national security concerns referenced in section 1 of this order,
I hereby proclaim, pursuant to sections 212(f) and 215(a) of the
INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry
into the United States of nationals of Iran, Libya, Somalia,
Sudan, Syria, and Yemen would be detrimental to the interests
of the United States. I therefore direct that the entry into the
United States of nationals of those six countries be suspended
for 90 days from the effective date of this order, subject to the
limitations, waivers, and exceptions set forth in sections 3 and
12 of this order.
7a
4
As the Government notes, nationals from these six countries are
ineligible for the Visa Waiver Program, which currently allows
nationals of thirty-eight countries seeking temporary admission to
the United States for tourism or certain business purposes to enter
without a visa. See 8 U.S.C. 1187(a). The program excludes
nationals of or aliens who have recently visited Iraq or Syria and
nationals of or recent visitors to countries designated as state
sponsors of terror (Iran, Sudan, and Syria). See 8 U.S.C.
1187(a)(12); see U.S. Dept of State, U.S. Visa Waiver Program
(Apr. 6, 2016), https://www.dhs.gov/visa-waiver-program (saved as
ECF opinion attachment). It also excludes recent visitors to
Libya, Somalia, and Yemen. U.S. Dept of Homeland Security,
DHS Announces Further Travel Restrictions for the Visa Waiver
Program (Feb. 18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-
announces-further-travel-restrictions-visa-waiver-program (saved
as ECF opinion attachment). Thus, nationals from the six coun-
tries identified in Section 2(c), like nationals from the vast majority
of countries, must undergo the individualized vetting of the regular
visa process.
8a
B.
The First and Second Executive Orders were issued
against a backdrop of public statements by the Presi-
dent and his advisors and representatives at different
points in time, both before and after the election and
President Trumps assumption of office. We now
recount certain of those statements.
On December 7, 2015, then-candidate Trump pub-
lished a Statement on Preventing Muslim Immigra-
tion on his campaign website, which proposed a total
and complete shutdown of Muslims entering the United
States until our countrys representatives can figure
out what is going on. J.A. 346. 5 That same day, he
5
Trumps Statement on Preventing Muslim Immigration reads
in full:
(New York, NY) December 7th, 2015,Donald J. Trump is
calling for a total and complete shutdown of Muslims entering
the United States until our countrys representatives can figure
out what is going on. According to Pew Research, among oth-
ers, there is great hatred towards Americans by large segments
of the Muslim population. Most recently, a poll from the Cen-
ter for Security Policy released data showing 25% of those
polled agreed that violence against Americans here in the
United States is justified as a part of the global jihad and 51%
of those polled agreed that Muslims in America should have
the choice of being governed according to Shariah. Shariah
authorizes such atrocities as murder against non-believers who
wont convert, beheadings and more unthinkable acts that pose
great harm to Americans, especially women.
Mr. Trump stated, Without looking at the various polling data,
it is obvious to anybody the hatred is beyond comprehension.
Where this hatred comes from and why we will have to deter-
mine. Until we are able to determine and understand this
problem and the dangerous threat it poses, our country cannot
be the victims of the horrendous attacks by people that believe
11a
6
Section 1182(f), entitled Suspension of entry or imposition of
restrictions by President, provides in pertinent part that
[w]henever the President finds that the entry of any aliens or of
any class of aliens into the United States would be detrimental
to the interests of the United States, he may by proclamation,
and for such period as he shall deem necessary, suspend the
entry of all aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of aliens any restrictions
he may deem to be appropriate.
8 U.S.C. 1182(f).
7
Section 1185(a)(1) provides that [u]nless otherwise ordered by
the President, it shall be unlawful[] for any alien to depart from or
enter or attempt to depart from or enter the United States except
under such reasonable rules, regulations, and orders, and subject
to such limitations and exceptions as the President may pre-
scribe. . . . 8 U.S.C. 1185(a)(1).
8
Section 1152(a)(1)(A) provides, with certain exceptions not rel-
evant here, that no person shall receive any preference or priority
or be discriminated against in the issuance of an immigrant visa
because of the persons race, sex, nationality, place of birth, or
place of residence. 8 U.S.C. 1152(a)(1)(A).
21a
9
The Government would have us, in assessing standing, delve
into whether EO-2 sends a sufficiently religious message such that
it violates the Establishment Clause. But this put[s] the merits
cart before the standing horse. Cooksey, 721 F.3d at 239 (quot-
ing Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093
(10th Cir. 2006)). The question of whether EO-2 conveys a
message of endorsement or disapproval [of religion] is a merits
determination. Mellen v. Bunting, 327 F.3d 355, 374 (4th Cir.
2003) (quoting Wallace v. Jaffree, 472 U.S. 38, 56 n.42 (1985)).
And both parties address it as a merits question in their briefs.
Appellants Br. 48 (The Order, in contrast, conveys no religious
message. . . . ); id. at 52 (Here, the Order does not convey a
religious message. . . . ); Appellees Br. 38 (The Orders purpose
to exclude Muslims conveys the exact same message. . . . ).
Because we assume the merits of Plaintiffs claim in assessing
standing, we need not reach the Governments argument on this
point.
31a
10
Plaintiffs injuries are also consistent with the injuries that
other courts have recognized in Establishment Clause cases that do
not involve religious displays or prayer. See Awad v. Ziriax,
670 F.3d 1111, 1122 (10th Cir. 2012) (recognizing injury stemming
from amendment that condemn[ed] [plaintiffs] religious faith and
expose[d] him to disfavored treatment); Catholic League for
Religious & Civil Rights v. City & County of San Francisco,
624 F.3d 1043, 1052 (9th Cir. 2010) (en banc) (finding exclusion or
denigration on a religious basis within the political community to
be sufficiently concrete injury).
32a
11
For similar reasons, this case is not, as the Government claims,
comparable to In re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir.
2008). In that case, the court found that non-liturgical Protestant
chaplains who were part of the Navys Chaplain Corps lacked
standing to bring a claim that the Navy preferred Catholic chap-
lains in violation of the Establishment Clause. Id. at 765. The
court stated its holding as follows: When plaintiffs are not them-
selves affected by a government action except through their abstract
offense at the message allegedly conveyed by that action, they have
not shown an injury-in-fact to bring an Establishment Clause
claim. Id. at 764-65. The court repeatedly emphasized that
plaintiffs were not themselves affected by the challenged action.
See id. at 758 ([T]he plaintiffs do not claim that the Navy actually
discriminated against any of them.); id. at 760 (But plaintiffs have
conceded that they themselves did not suffer employment discrim-
ination. . . . Rather, they suggest that other chaplains suffered
discrimination.). In fact, plaintiffs theory of standing was so
expansive that their counsel conceded at oral argument that even
the judges on th[e] panel would have standing to challenge the
allegedly discriminatory conduct. Id. at 764. Here, by contrast,
Doe #1 is directly affected by the government actionboth its
33a
1.
We begin by addressing the Governments argu-
ment that the district court applied the wrong test in
evaluating Plaintiffs constitutional claim. The Gov-
ernment contends that Mandel sets forth the appro-
priate test because it recognizes the limited scope of
judicial review of executive action in the immigration
context. Appellants Br. 42. We agree that Mandel
is the starting point for our analysis, but for the rea-
sons that follow, we find that its test contemplates the
application of settled Establishment Clause doctrine in
this case.
In Mandel, American university professors had
invited Mandel, a Belgian citizen and revolutionary
Marxist and professional journalist, to speak at a num-
ber of conferences in the United States. 408 U.S. at
756. But Mandels application for a nonimmigrant
visa was denied under a then-existing INA provision
that barred the entry of aliens who advocate the eco-
nomic, international, and governmental doctrines of
world communism. 8 U.S.C. 1182(a)(28)(D) (1964).
The Attorney General had discretion to waive
1182(a)(28)(D)s bar and grant Mandel an individual
exception, but declined to do so on the grounds that
Mandel had violated the terms of his visas during prior
visits to the United States. 408 U.S. at 759. The
American professors sued, alleging, among other things,
that the denial of Mandels visa violated their First
Amendment rights to hear his views and engage him
in a free and open academic exchange. Id. at 760.
The Supreme Court, citing Congress plenary
power to make rules for the admission of aliens and to
exclude those who possess those characteristics which
39a
13
The Court specifically declined to decide what First Amend-
ment or other grounds may be available for attacking exercise of
discretion for which no justification whatsoever is advanced. Id.
40a
14
In Johnson, this Court considered an equal protection chal-
lenge to an immigration law. Id. at 126-27. Relying on several
of our sister circuits, we equated Mandels facially legitimate
and bona fide test with rational basis review. Id. at 127 (citing
Barthelemy v. Ashcroft, 329 F.3d 1062, 1065-66 (9th Cir. 2003), as
amended (June 9, 2003); Wedderburn v. INS, 215 F.3d 795, 800
(7th Cir. 2000)). But the Johnson Courts interpretation is incom-
plete. Rational basis review does build in deference to the govern-
ments reasons for acting, like Mandels facially legitimate
requirement, but it does not call for an inquiry into an actors bad
faith and therefore does not properly account for Mandels bona
fide requirement. Even more, Johnson and similar cases apply-
ing rational basis review did so in the context of equal protection
challenges. See, e.g., Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir.
2008); Breyer v. Meissner, 214 F.3d 416, 422 n.6 (3d Cir. 2000).
But courts do not apply rational basis review to Establishment
Clause challenges, because that would mean dispensing with the
purpose inquiry that is so central to Establishment Clause review.
See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 532 (1993) (In our Establishment Clause cases we
have often stated the principle that the First Amendment forbids
an official purpose to disapprove of a particular religion or of
religion in general.); see also Colorado Christian Univ. v. Weaver,
534 F.3d 1245, 1255 n.2 (10th Cir. 2008) (suggesting that rational
basis review cannot be used to evaluate an Establishment Clause
claim) (citing Heller, 554 U.S. 570). We therefore decline to apply
Johnsons interpretation of Mandels facially legitimate and bona
fide test to this case.
41a
15
The Ninth Circuit has found that Justice Kennedys concur-
rence is the controlling opinion in Din. It relied on the Supreme
Courts holding in Marks v. United States, which stated that
[w]hen a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the holding
of the Court may be viewed as that position taken by those Mem-
bers who concurred in the judgments on the narrowest grounds.
Cardenas, 826 F.3d at 1171 (quoting Marks v. United States,
430 U.S. 188, 193 (1977)). We agree that Justice Kennedys opin-
ion sets forth the narrowest grounds for the Courts holding in Din
and likewise recognize it as the controlling opinion.
43a
16
We reject the governments contentions that none of these
statements in substance corresponds to [Section 2(c)], Appel-
lants Br. 52, and that Section 2(c) bears no resemblance to a
Muslim ban, id. at 53. These statements show that President
Trump intended to effectuate his proposed Muslim ban by target-
ing predominantly Muslim nations, rather than Muslims explicitly.
Section 2(c) does precisely that.
53a
17
Plaintiffs suggest that EO-2 is not facially neutral, because by
directing the Secretary of Homeland Security to collect data on
honor killings committed in the United States by foreign nation-
als, EO-2 incorporates a stereotype about Muslims that the Pres-
ident had invoked in the months preceding the Order. Appellees
Br. 5, 7; see J.A. 598 (reproducing Trumps remarks in a September
2016 speech in Arizona in which he stated that applicants from
countries like Iraq and Afghanistan would be asked their views
about honor killings, because a majority of residents [in those
countries] say that the barbaric practice of honor killings against
women are often or sometimes justified). Numerous amici explain
that invoking the specter of honor killings is a well-worn tactic
for stigmatizing and demeaning Islam and painting the religion,
and its men, as violent and barbaric. See, e.g., Brief for New York
University as Amicus Curiae Supporting Appellees 21, ECF No.
82-1; Brief for Muslim Justice League, et al., as Amici Curiae
Supporting Appellees 17-18, ECF No. 152-1; Brief for History
Professors and Scholars as Amici Curiae Supporting Appellees 2-3,
ECF No. 154-1; Brief for Constitutional Law Scholars as Amici
Curiae Supporting Appellees 19 n.3, ECF No. 173-1; Brief for
Members of the Clergy, et al., as Amici Curiae Supporting Appel-
lees 13, ECF No. 179-1. The Amici Constitutional Law Scholars
go so far as to call the reference to honor killings anti-Islamic
dog-whistling. Brief for Constitutional Law Scholars 19 n.3.
We find this text in EO-2 to be yet another marker that its national
security purpose is secondary to its religious purpose.
54a
18
A number of amici were current on the relevant intelligence as
of January 20, 2017. Id. at 9.
55a
19
The Government separately suggests that we should limit our
review to EO-2s text and operation based on the Constitutions
structure and its separation of powers, and the presumption of
regularity that attaches to all federal officials actions. Appel-
lants Br. 45 (quoting United States v. Chem. Found., Inc., 272 U.S.
1, 14 (1926)). In support of this point, the Government relies on
pre-McCreary cases discussing, variously, judicial deference to an
executive officials decision to deport an alien who had violated the
terms of his admission to the United States, Reno v. Am.-Arab
Anti-Discrimination Comm., 525 U.S. 471, 491 (1999), the Presi-
dents absolute immunity from damages liability based on his or
her official acts, Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982), and
the presumptive privilege we afford a Presidents conversations
and correspondence, United States v. Nixon, 418 U.S. 683, 708
(1974). These cases suggest that in certain circumstances, we
insulate the President and other executive officials from judicial
scrutiny in order to protect and promote the effective functioning
of the executive branch. But these cases do not circumscribe our
review of Establishment Clause challenges or hold that when a
Presidents official acts violate the Constitution, the acts them-
selves are immune from judicial review. We find no support in
this line of cases for the Governments argument that our review of
EO-2s context is so limited. In fact, the Supreme Court has
suggested quite the opposite. See Zadvydas, 533 U.S. at 695
(Executive and Legislative Branch decisionmaking . . . power
is subject to important constitutional limitations. (citing Chadha,
462 U.S. at 941-42)).
58a
20
The government also suggests that we can never rely on pri-
vate communications to impute an improper purpose to a govern-
ment actor. See, e.g., Modrovich v. Allegheny County, 385 F.3d
397, 411-12 (3d Cir. 2004) (limiting its review to statements made
by the elected officials who oversaw the government action). But
this is incorrect. These cases merely establish that the motives of
people not involved in the decisionmaking process cannot alone
evince the governments motive. See Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) ([R]emarks by non-
decisionmakers or remarks unrelated to the decisionmaking pro-
cess itself are not direct evidence of discrimination. (emphasis
added)). But when those statements reveal something about the
governments purpose, they are certainly part of the evidence we
review for purpose. In McCreary, the Court noted that a pastor
had delivered a religious message at the ceremony for the chal-
lenged religious display. 545 U.S. at 869. Based on this and
other evidence of purpose, the Court concluded that [t]he reason-
able observer could only think that the [government] meant to
emphasize and celebrate the [displays] religious message. Id.
In any event, none of these cases contemplate the situation here,
where the private speaker and the government actor are one and
the same. We need not impute anyones purpose to anyone else,
for the same person has espoused these intentions all along. The
distinction between candidate and elected official is thus an artifi-
cial one where the inquiry is only whether the reasonable observer
would understand the candidates statements to explain the pur-
pose of his actions once elected.
60a
21
This finding comports with the McCreary Courts observation
that past actions [do not] forever taint a government action,
545 U.S. at 873-74. Whether a statement continues to taint a
government action is a fact-specific inquiry for the court evaluating
the statement.
62a
22
What is more, we think EO-2 would likely fail any purpose test,
for whether religious animus motivates a government action is a
fundamental part of our Establishment Clause inquiry no matter
the degree of scrutiny that applies. See, e.g., Town of Greece v.
Galloway, 134 S. Ct. 1811, 1826 (2014) (upholding towns legislative
prayer policy in part because [i]n no instance did town leaders
signal disfavor toward nonparticipants or suggest that their stature
in the community was in any way diminished); Hernandez v.
Commr of Internal Revenue, 490 U.S. 680, 696 (1989) (finding that
the challenged statute satisfied Lemons purpose prong in part
because there is no allegation that [it] was born of animus);
Lynch, 465 U.S. at 673 (stating that the Establishment Clause for-
bids hostility toward any [religion]); see also Brief for Constitu-
tional Law Scholars 6-11. There is simply too much evidence that
EO-2 was motivated by religious animus for it to survive any mea-
sure of constitutional review.
66a
1
Exec. Order No. 13,780, Protecting the Nation from Foreign
Terrorist Entry Into the United States, 82 Fed. Reg. 13,209
(Mar. 6, 2017).
2
Based on my view that the Second Executive Order does not
satisfy the threshold requirement of 8 U.S.C. 1182(f) for exercise
of a presidents authority under that statute, I would conclude that
the Second Executive Order is not facially legitimate within the
meaning of Mandel, 408 U.S. at 770. Nevertheless, I join in the
majority opinions holding that the plaintiffs are likely to succeed
on the merits of their Establishment Clause claim, based on my
further conclusion that the Second Executive Order likely fails
Mandels bona fide test. In reaching this conclusion, I addition-
ally note that I do not read the majority opinion as holding that a
plausible allegation of bad faith alone would justify a courts deci-
sion to look behind the governments proffered justification for its
action. Rather, in accordance with Justice Kennedys concurrence
in Din, a plaintiff must make an affirmative showing of bad faith to
satisfy the bona fide requirement of Mandel. See Kerry v. Din,
135 S. Ct. 2128, 2140-41 (2015) (Kennedy, J., concurring in the
judgment).
77a
3
We may consider this facial deficiency not raised by the plain-
tiffs because this defect is apparent from the record. See Drager v.
PLIVA USA, Inc., 741 F.3d 470, 474 (4th Cir. 2014) (explaining that
the Court may affirm on any grounds apparent from the record).
4
Because only one plaintiff must have standing for the Court to
consider a particular claim, I do not address whether the other
plaintiffs also have standing to challenge the Second Executive
Order under the INA. See Bostic v. Schaefer, 760 F.3d 352, 370-71
(4th Cir. 2014).
78a
5
For the same reasons, I reject the governments contention that
the plaintiffs claims are not ripe for review. The harm to the
plaintiffs caused by separation from their family members is
imminent and concrete, and is not ameliorated by the hypothetical
possibility that the plaintiffs might receive a discretionary waiver
under Section 3(c) of the Second Executive Order at some point in
the future.
79a
i.
Initially, I would reject the plaintiffs contention
that 8 U.S.C. 1152(a)(1)(A), which prohibits discrimi-
nation on the basis of nationality in the issuance
of immigrant visas, operates as a limitation on the
Presidents authority under 8 U.S.C. 1182(f) to sus-
pend the entry of all aliens or any class of aliens if he
finds that the entry of such aliens would be detri-
mental to the interests of the United States. Section
1152(a)(1)(A) provides that:
[N]o person shall receive any preference or priority
or be discriminated against in the issuance of an
immigrant visa because of the persons race, sex,
nationality, place of birth, or place of residence.
Thus, the plain language of Section 1152(a)(1)(A)
addresses an aliens ability to obtain an immigrant visa.
Section 1182(f), on the other hand, explicitly addresses
an aliens ability to enter the United States, and makes
no reference to the issuance of visas. See 8 U.S.C.
1182(f). I am unpersuaded by the plaintiffs attempt
to read into Section 1152(a)(1)(A) terms that do not
appear in the statutes plain language.
Sections 1152(a)(1)(A) and 1182(f) address two dis-
tinct actions in the context of immigration, namely, the
issuance of a visa and the denial of an aliens ability to
enter the United States. Indeed, the fact that an alien
possesses a visa does not guarantee that persons abil-
ity to enter the United States. For example, an alien
who possesses a visa may nonetheless be denied admis-
sion into the United States for a variety of reasons set
forth elsewhere in the INA. See 8 U.S.C. 1201(h)
(Nothing in this chapter shall be construed to entitle
81a
6
See Cent. Intelligence Agency, The World Factbook, Country
Comparison: Population, https://www.cia.gov/library/publications/
the-world-factbook/rankorder/2119rank.html (last visited May 19,
2017) (saved as ECF opinion attachment) (listing populations of the
six identified countries, in the total amount of more than 180 mil-
lion). Notably, the class of banned nationals potentially includes
citizens of one of the six identified countries whether or not those
citizens have ever been physically present in one of these countries.
See Cent. Intelligence Agency, The World Factbook, Field Listing:
Citizenship, https://www.cia.gov/library/publications/the-world-factbook/
fields/2263.html (last visited May 19, 2017) (saved as ECF opinion
attachment).
84a
7
See Visa Waiver Program Improvement and Terrorist Travel
Prevention Act of 2015, Pub. L. No. 114-113, 203, 129 Stat. 2242,
2989-91; Department of Homeland Security, U.S. Customs and
Border Protection-009 Electronic System for Travel Authorization
System of Records, 81 Fed. Reg. 39,680, 39,682 (June 17, 2016).
8
See U.S. Customs & Border Prot., Visa Waiver Program
Improvement and Terrorist Travel Prevention Act Frequently
Asked Questions, https://www.cbp.gov/travel/international-visitors/
visa-waiver-program/visa-waiver-program-improvement-and-terrorist-
travel-prevention-act-faq (last visited May 19, 2017) (saved as ECF
opinion attachment).
87a
1
The answer to the rhetorical question of whether the President
will be able to free himself from the stigma of his own self-
inflicted statements, post at 189, lies in determining whether the
Executive Order complies with the rule of law. That requires us
to consider, in each instance, how the character, temporality, and
nature of the Presidents repeated, public embrace of an invidiously
discriminatory policy offensive to the Constitution bear on a chal-
lenged policy.
2
It strains credulity to state that the security of our nation is
indisputably lessened as a result of the injunction. Post at 188
(emphasis added). Rather, the district courts order only enjoined
implementation of Section 2(c) of the Executive Ordera provision
that the President maintained would increase national security.
Indeed, two reports released by the Department of Homeland
Security in February 2017 and March 2017 found that citizenship is
an unlikely indicator of whether an individual poses a terrorist
threat to the United States and that most of the individuals who
have become U.S.-based violent extremists have been radicalized
after living in the United States for a period of years. J.A. 233.
The Government has not provided any information suggesting,
much less establishing, that the security risks facing our country
are any different today than they were when the President first
sought to impose this temporary ban only seven days into his pres-
idency.
91a
3
Kent v. Dulles, 357 U.S. 116, 129-30 (1958).
4
Romer v. Evans, 517 U.S. 620, 636, 632 (1996).
5
Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
92a
6
Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
93a
7
The Government also asserts that Section 2(c)s suspension on
entry is authorized by Section 1185(a) of the Immigration Act,
which authorizes the President to prescribe reasonable rules,
regulations, and orders, as well as limitations and exceptions, gov-
erning the entry of aliens. Appellants Brief at 29 (quoting
8 U.S.C. 1185(a)). The Government does not argue that Sections
1182(f) and 1185(a) confer meaningfully different powers on the
President. Because Section 1182(f) is specifically tailored to the
suspension on entry, and because there is no reason to believe that
the analysis would be different under Section 1185(a), my analysis
will proceed under Section 1182(f).
Additionally, because the Executive Order cites the Immigra-
tion Act as the sole statutory basis for the Presidents authority to
proclaim Section 2(c)s suspension on entry, I need not, and thus do
not, take any position on the scope of the Presidents delegated
power to deny entry to classes of aliens under other statutes.
Likewise, because the claim at issue relates only to Section 2(c)s
compliance with the Immigration Act, I do not address whether,
and in what circumstances, the President may deny entry to classes
of aliens under his inherent powers as commander-in-chief, even
absent express congressional authorization. See The Prize Cases,
67 U.S. 635 (1862).
Finally, I agree with Judge Keenans analysis and conclusion
that, at a minimum, John Doe #1 has standing to pursue Plaintiffs
Immigration Act claim. Ante at 82-83.
94a
8
Congresss constitutional power to control immigrationand
authority to delegate that controlfundamentally differs in a time
of war. Korematsu v. United States, 323 U.S. 214, 224 (1944)
(Frankfurter, J., concurring) ([T]he validity of action under the
war power must be judged wholly in the context of war. That
action is not to be stigmatized as lawless because like action in
times of peace would be lawless.). The Supreme Courts broadest
statements regarding the scope of the Presidents delegated pow-
ers over immigrationwhich are relied upon by the Government
are in cases in which Congress expressly declared war and author-
ized the President to deny entry to aliens as part of his prosecution
of the conflict. See, e.g., Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 210 & n.7 (1953) (Congress expressly author-
ized the President to impose additional restrictions on aliens
entering or leaving the United States during periods of interna-
tional tension and strife [including] the present emergency
[the Korean War]. (emphasis added)); Knauff, 338 U.S. at 543
([B]ecause the power of exclusion of aliens is also inherent in the
executive department of the sovereign, Congress may in broad
terms authorize the executive to exercise the power, e.g., as was
done here, for the best interests of the country during a time of
national emergency [World War II]. (emphasis added)).
105a
9
See Kerry v. Din, 135 S. Ct. 2128, 2142 (2015) (Breyer, J., dis-
senting) (stating that a United States citizen and resident has a
procedural due process interest in knowing the Governments
grounds for denying a visa application by her husband, an Afghan
citizen with no claim to rights under the Constitution); id. at 2139
(Kennedy, J., concurring in judgment) (recognizing that a United
States citizen may have a protected liberty interest in the visa
application of her alien spouse).
107a
10
Notably, Kaloudis found a basis for this clear outer limit on
congressional delegations of discretionary authority to the execu-
tive branch in the Immigration Act well before Congress made
explicit, in comprehensively amending the Immigration Act, that
discrimination on the basis of race, sex, ethnicity, and nationality
has no place in controlling immigration. See infra Part I.C.3.
111a
2.
Nor does the broader context of the Immigration
Act, and Section 1182(f)s place within it, suggest that
Congress intended Section 1182(f) to allow the Presi-
dent to suspend the entry of a class of aliens based on
invidious discrimination. In Section 1182(a), Congress
enumerates numerous specific classes of aliens who are
ineligible for visas or admission. These categories
encompass, for example, classes of individuals who
pose a variety of health, safety, and security risks,
or are likely to become public charges. See generally
8 U.S.C. 1182(a). Many of the categories are quite
specific, providing particularized reasons why individ-
ual aliens may be deemed inadmissible. For example,
aliens who have been convicted of certain crimes,
served as foreign government officials and committed
particularly severe violations of religious freedom, or
participated in the commission of torture are inadmissi-
ble. 8 U.S.C. 1182(a)(2)(A), (G); id. 1182(a)(3)(E)(iii).
Likewise, Section 1182(a) deems inadmissible aliens
who have been members of a totalitarian or Communist
party, abused their status as student visa holders, or
engaged in the recruitment or use of child soldiers.
Id. 1182(a)(3)(D); id. 1182(a)(6)(G); id. 1182(a)(3)(G).
Importantly, most of the categories of inadmissible
classes of aliens Congress sets forth in Section 1182(a)
relate to past conduct by an alien that renders the alien
particularly dangerous to the interests of the United
States. E.g., 1182(a)(2); 1182(a)(3); 1182(a)(6)(E);
1182(a)(8)(B); 1182(a)(9)(A). And, in accordance
with Congresss decision to define categories of inad-
missible aliens largely based on individual conduct and
responsibility rather than considerations over which
113a
11
The Government points to a number of orders promulgated by
Presidents pursuant to their authority under Section 1182(f) as evi-
dence that that statutory provision authorizes the President to
engage in national origin-based discrimination. But the previous
orders the Government cites materially differ from Section 2(c), in
that they did not suspend the entry of classes of aliens based on
national origin alone, let alone use national origin as a proxy to
suspend the entry of a class of aliens based on another invidiously
discriminatory basis, such as religion. See Proclamation 8693 (July
24, 2011) (suspending the entry of aliens subject to travel bans
issued by the United Nations Security Councils resolution barring
member nations from permitting the entry of individuals who
threaten peace in various nations); Proclamation 8342 (Jan. 22,
2009) (suspending the entry of senior government officials who
have impeded their governments antitrafficking efforts, have failed
to implement their governments antitrafficking laws and policies,
or who otherwise bear responsibility for their governments failures
to take steps recognized internationally as appropriate to combat
trafficking in persons); Proclamation 6958 (Nov. 22, 1996) (sus-
pending the entry of members of the Government of Sudan, officials
of that Government, and members of the Sudanese armed forces
based on the Sudanese governments harboring of individuals who
attempted to assassinate the Egyptian President in Ethiopia, in
violation of Ethiopian sovereignty); Executive Order No. 12,807
(May 24, 1992) (suspending the entry of undocumented aliens
[entering the United States] by sea during the mass exodus of
Haitian nationals fleeing a military coup, often in dangerous and
overcrowded sea vessels); Proclamation 5887 (Oct. 22, 1988) (sus-
pending the entry of officers and employees of the Nicaraguan
government as nonimmigrants to the United States based on the
Nicaraguan governments unjustified expulsion of American dip-
lomats and long-standing . . . suppression of free expression
and press and support of subversive activities throughout Central
America); Proclamation 5829 (June 10, 1988) (suspending the entry
of Panamanian nationals . . . who formulate or implement the
policies of Manuel Antonio Noriega and Manuel Solis Palma due to
123a
* * * * *
In sum, the language of Section 1182(f), related pro-
visions in the Immigration Act, and the object and
policy of the statute do not explicitly state, much
less provide a clear indication, that Congress intended
to delegate to the President wholly unconstrained author-
ity to deny entry to any class of aliens, including based
on invidiously discriminatory reasons. See Zadvydas,
533 U.S. at 697. Accordingly, Section 2(c)which this
Court finds was likely borne of the Presidents animus
against Muslims and his intent to rely on national
origin as a proxy to give effect to that animusexceeds
the authority Congress conferred on the President in
Section 1182(f). As Judge Friendly put it, Congress
could not have intended to make relevant to the Pres-
idents exercise of his delegated authority to suspend
the entry of aliens invidious discrimination against a
particular race or group. Wong Wing Hang, 360 F.2d
at 719 (internal quotation marks omitted).
II.
Invidious discrimination in any form and in any
degree has no justifiable part whatever in our demo-
cratic way of life. It is unattractive in any setting but
it is utterly revolting among a free people who have
embraced the principles set forth in the Constitution
of the United States. Korematsu, 323 U.S. at 242
(Murphy, J., dissenting). Yet the Government asks this
Court to hold that, in enacting Section 1182(f), Con-
gress intended to delegate to the President the power
to deny entry to a class of aliens based on nothing more
than such aliens race, national origin, or religion.
One might argue, as President Trump seemed to
suggest during the campaign, ante at 18-21, that as a
matter of statistical fact, Muslims, and therefore
nationals of the six predominantly Muslim countries
covered by the Executive Order, disproportionately
engage in acts of terrorism, giving rise to a factual
inference that admitting such individuals would be
detrimental to the interests of the United States.
Indeed, viewing the Executive Order in its most favor-
able light, that is the precisely the rationale underlying
Section 2(c). Setting aside the question of whether
that factual finding is true, or even reasonablewhich
is, at best, highly debatable given the 180 million peo-
ple in the countries subject to the suspension on entry
and the 1.6 million Muslims worldwidethat is pre-
cisely the inference that the Framers of the Constitu-
tion and the Reconstruction Amendments concluded
125a
12
Our country adheres to the rule of law in preserving core con-
stitutional protections. Thus, when the President can identify no
change in circumstances justifying an invidious encroachment on
constitutional rights, a simple claim of potential harm to national
security does not provide the President with unfettered authority
to override core constitutional protections. See New York Times
Co. v. United States, 403 U.S. 713, 714 (1971) (holding that a claim
of potential harm to national security does not provide the execu-
tive branch with unconstrained authority to override the freedom
of the press). Indeed, even the invocation of Congressional war
powers to protect national defense do not remove constitutional
limitations safeguarding essential liberties. Robel, 389 U.S. at
264-67 (internal quotation marks omitted).
126a
1
Indeed, many might argue that this President has repeatedly
and regularly dialed back or reversed course on his campaign
promises. See, e.g., Priya Krishnakumar et al., Tracking Presi-
dent Trumps Campaign Promises, L.A. Times (Apr. 26, 2017),
http://www.latimes.com/projects/la-na-pol-trump-100-days-promises/
(reporting President Trump has scaled back or abandoned
9 out of 31 campaign promises) (saved as ECF opinion attachment).
2
Given that they were made on the campaign trail, I do not con-
sider as part of my analysis the Presidents campaign websites
archived statements about the plan to ban all Muslims from enter-
ing the United States. However, I must note it is peculiar that
those statements were removed shortly before we began hearing
arguments in this case. See Dan Merica, Trump campaign
removes controversial Muslim ban language from website, CNN
(May 8, 2017, 3:37 PM), http://www.cnn.com/2017/05/08/politics/
trump-muslim-ban-campaign-website/ (saved as ECF opinion attach-
ment).
131a
3
Giuliani is purportedly a member, and claims to be chairman, of
an expert legal commission assembled to study how to create a law-
ful way to ban Muslims from entering the country and an acknowl-
edged advisor to the President. See J.A. 508-09. Courts routinely
analyze statements and reports from presidential commissions such
as the one of which Giuliani is a member. See, e.g., Bartnicki v.
Vopper, 532 U.S. 514, 533 (2001) (citing and quoting Presidents
Commission on Law Enforcement and Administration of Justice,
The Challenge of Crime in a Free Society 202 (1967) to demon-
strate importance of privacy in communications); Osborne v. Ohio,
495 U.S. 103, 111 (1990) (citing Attorney Generals Commission on
Pornography to establish states interest in punishing child porno-
graphy possession).
133a
4
Presidential statements necessarily shed light on executive
policy. See, e.g., Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct.
2076, 2081 (2015) (using presidential statement to show United
States position on status of Jerusalem); Clinton v. City of New
York, 524 U.S. 417, 495-96 (1998) (Breyer, J., dissenting) (relying
on presidential statements to demonstrate effect of Line Item Veto
Act).
134a
5
When relevant, the press secretary and other White House
Officials statements can represent official government position.
See, e.g., Reynolds v. United States, 123 S. Ct. 975, 984 (2012) (cit-
ing to the Office of the Press Secretary to show Presidents position
on registration of sex offenders who committed offenses before
enactment of the Adam Walsh Child Protection and Safety Act of
2006); Hamdi v. Rumsfeld, 542 U.S. 507, 549 (2004) (Souter, J.,
concurring in part, dissenting in part, and concurring in the judg-
ment) (relying on Office of the White House Press Secretarys
statement to identify official executive policy).
135a
6
Syrian citizenship is not based on country of birth. See Legis-
lative Decree 276-Nationality Law [Syrian Arab Republic], Legis-
lative Decree 276, 24 November 1969. Therefore, a person can
have Syrian citizenship without ever setting foot in the country and
a person who lives in Syria for their entire lifetime may not have
Syrian citizenship.
7
Honor killings, in which family members kill one of their own
(usually a woman) under the belief that the murder is necessary to
vindicate the familys honor, occur within societies of many faiths
and, notably, in countries that were not subject to either Executive
Order. See Kimberly Winston, Activists: Trump Call for Honor
Killings Report Targets Muslims, USA Today (March 7, 2017, 3:06
PM), https://www.usatoday.com/story/news/2017/03/07/activists-
trump-call-honor-killings-report-targets-muslims/98861230/ (saved
as ECF opinion attachment).
138a
8
EO-1 also sought information on honor killings. See EO-1
10(a)(iii).
9
I join in Part I of Judge Keenans opinion, concluding that the
plaintiffs possess standing to bring a claim under the INA.
139a
10
Immigrant visas are issued to persons seeking admission to the
United States with the goal of obtaining lawful permanent residence
status. See 8 U.S.C. 1101(a)(15), (20), 1201(a)(1)(A). Those
seeking admission for other purposes, such as business, study, or
tourism, typically receive nonimmigrant visas. See id. 1101(a)(15),
1201(a)(1)(B). I would decline Appellees invitation to extend
1152(a)(1)(A) to nonimmigrant visas.
140a
11
Indeed, Section 3 of EO-1, the predecessor to EO-2s Section 2,
was entitled Suspension of Issuance of Visas and Other Immigra-
tion Benefits to Nationals of Countries of Particular Concern.
142a
1
Other portions of the Order, not at issue here, suspend adjudi-
cation of applications under the Refugee Program for 120 days,
subject to case-by-case waivers, and limit to 50,000 the number of
refugees admitted in fiscal year 2017. Order 6(a)-(c).
156a
2
See, e.g., Exec. Order 12,324, 46 Fed. Reg. 48,109 (Sept. 29,
1981) (Reagan); Proclamation 5,517, 51 Fed. Reg. 30,470 (Aug. 22,
1986) (Reagan); Exec. Order 12,807, 57 Fed. Reg. 23,133 (May 24,
1992) (George H.W. Bush); Proclamation 6,958, 61 Fed. Reg. 60,007
(Nov. 22, 1996) (Clinton); Proclamation 7,359, 65 Fed. Reg. 60,831
(Oct. 10, 2000) (Clinton); Executive Order 13,276, 67 Fed. Reg.
69,985 (Nov. 15, 2002) (George W. Bush); Exec. Order 13,692,
80 Fed. Reg. 12,747 (Mar. 8, 2015) (Obama); Exec. Order 13,726,
81 Fed. Reg. 23,559 (Apr. 19, 2016) (Obama).
167a
3
The opinions in support of affirmance betray an object beyond a
disciplined analysis. Judge Gregory states, for example, that the
Executive Order drips with religious intolerance, animus, and
discrimination, ante at 12, and Judge Wynn states similarly, this
Executive Order is no more than . . . naked invidious discrimi-
nation against Muslims, ante at 94. These statements flatly mis-
characterize an order that undisputedly contains no facial reference
to religion.
169a
C
The majoritys new rule, which considers statements
made by candidate Trump during the presidential cam-
paign to conclude that the Executive Order does not
mean what it says, is fraught with danger and imprac-
ticability. Apart from violating all established rules
for construing unambiguous textswhether statutes,
regulations, executive orders, or, indeed, contracts
reliance on campaign statements to impose a new mean-
ing on an unambiguous Executive Order is completely
strange to judicial analysis.
The Supreme Court has repeatedly warned against
judicial psychoanalysis of a drafters heart of hearts.
McCreary Cty., Ky. v. Am. Civil Liberties Union of
Ky., 545 U.S. 844, 862 (2005). And consistent with that
warning, the Court has never, in evaluating the legality
of executive action, deferred to comments made by such
officials to the media. Hamdan v. Rumsfeld, 548 U.S.
557, 623-24 n.52 (2006). The Courts reluctance to con-
sider statements made in the course of campaigning
derives from good sense and a recognition of the pit-
falls that would accompany such an inquiry.
Because of their nature, campaign statements
are unbounded resources by which to find intent of
various kinds. They are often short-hand for larger
ideas; they are explained, modified, retracted, and
amplified as they are repeated and as new circumstances
and arguments arise. And they are often ambiguous.
A court applying the majoritys new rule could thus
have free reign to select whichever expression of a
candidates developing ideas best supports its desired
conclusion.
170a
4
While there is no question that it binds us, Lemons test, and
particularly its inquiry into government purpose, has repeatedly
been criticized as open-ended and manipulable. See McCreary,
545 U.S. at 902 (Scalia, J., dissenting) (By shifting the focus of
Lemons purpose prong from the search for a genuine, secular
motivation to the hunt for a predominantly religious purpose, the
Court converts what has in the past been a fairly limited inquiry
into a rigorous review of the full record); see also, e.g., Santa Fe,
530 U.S. at 319-20 (Rehnquist, C.J., dissenting); Kiryas Joel,
512 U.S. at 720 (OConnor, J., concurring in part and concurring in
the judgment); Cty. of Allegheny v. Am. Civil Liberties Union
Greater Pittsburgh Chapter, 492 U.S. 573, 655-57 (1989) (Kennedy, J.,
concurring in the judgment in part and dissenting in part).
Should the majority not be wary of jumping when on thin ice?
178a
1
Though I fully join Judge Niemeyers and Judge Agees well-
reasoned dissenting opinions, I offer the following additional com-
ments to explain why I believe the district court further abused its
discretion in entering the preliminary injunction. Judge Niemeyer
and Judge Agee have authorized me to state that they join in this
dissenting opinion.
2
I have omitted internal quotation marks, alterations, and cita-
tions here and throughout this opinion, unless otherwise noted.
181a
Rumsfeld, 670 F.3d 540, 549 (4th Cir. 2012), and they
are and should be undertaken only by those directly
responsible to the people whose welfare they advance
or imperil, Chicago & S. Air Lines, Inc. v. Waterman
S.S. Corp., 333 U.S. 103, 111 (1948).
Every President has the constitutional responsibil-
ity for the security of the Nation as the Chief Executive
and as Commander in Chief of our Armed forces.
El-Masri v. United States, 479 F.3d 296, 304 (4th Cir.
2007). In this role, a President and his national secu-
rity advisors (unlike federal judges at all levels, law-
yers, and commentators) have constant access to infor-
mation that may describe new and serious threats to
our Nation and its people. Boumediene, 553 U.S. at
797. For these reasons and more, courts traditionally
have been reluctant to intrude upon the authority of
the Executive in military and national security affairs.
Dept. of Navy v. Egan, 484 U.S. 518, 530 (1988).
This case involves the Presidents attempt to impose
a temporary pause on the entry of nationals from six
countries that indisputably present national security con-
cerns. It is pertinent to observe that any policy toward
aliens is vitally and intricately interwoven with con-
temporaneous policies in regard to the conduct of for-
eign relations, the war power, and the maintenance of a
republican form of government. Such matters are so
exclusively entrusted to the political branches of gov-
ernment as to be largely immune from judicial inquiry
or interference. Harisiades v. Shaughnessy, 342 U.S.
580, 589 (1952). Along this line, the Supreme Court
has noted that the Governments interest in prevent-
ing the entry of unwanted persons and effects is at its
zenith at the international border, United States v.
182a
3
Ironically, courts are sensitive in defending their own integrity
and often use the judicial oath of office as a shield against claims of
bias. See generally Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 891 (2009) (Roberts, C.J., dissenting) (There is a presumption
of honesty and integrity in those serving as adjudicators. All
judges take an oath to uphold the Constitution and apply the law
impartially, and we trust that they will live up to this promise.).
Certainly, the President, who takes a similar oath of office, should
be accorded the same trust. See, e.g., N.L.R.B. v. Enterprise
Leas. Co. SE, LLC, 722 F.3d 609, 671 (4th Cir. 2013) (Diaz, J.,
concurring in part and dissenting in part) (The majority also gives
short shrift to the fact that the President too swears an oath to
uphold the Constitution, and that when he acts under its express
authority, his actions should be accorded a presumption of consti-
tutionality.).
184a
4
In Waterman S.S. Corp., 333 U.S. at 111, the Court made the
following apt observation: The President, both as Commander-
in-Chief and as the Nations organ for foreign affairs, has available
intelligence services whose reports neither are nor ought to be
published to the world. It would be intolerable that courts, with-
out the relevant information, should review and perhaps nullify
actions of the Executive taken on information properly held
secret.
185a
5
The limited temporal and geographical scope of the Executive
Order, coupled with the designated categorical exclusions and
case-by-case waiver process, strongly supports the Presidents
stated national security rationale rather than the district courts
bias finding. Even without those exclusions and waivers, the
temporary travel pause would only potentially affect approximately
10% of Muslims worldwide.
6
To obtain a preliminary injunction, a plaintiff must establish:
(1) he is likely to succeed on the merits, (2) he is likely to suffer
irreparable harm in the absence of preliminary relief, (3) the bal-
ance of equities tips in his favor, and (4) an injunction is in the
public interest. Winter v. Natural Res. Def. Counc., Inc., 555 U.S.
7, 20 (2008).
186a
7
Similarly, plaintiffs counsel admitted during oral argument
that he has no basis to challenge the integrity of the Attorney
General and Secretary of Homeland Security. The apparent good-
faith of these officials, which is an inconvenient fact for the plain-
tiffs, leads inexorably to the unanswered question of why the dis-
trict court essentially ignored or rejected their detailed national
security advice to the President.
189a
8
At oral argument, several judges (including myself) questioned
when, if ever, the President could free himself from the stigma of
bias that the district court has enshrined by its preliminary fact-
finding. Notably, no one has provided a satisfactory response.
191a
1
I join the well-written dissents of Judge Niemeyer and Judge
Shedd in full. But, for the reasons stated herein, I would find it
unnecessary to reach the merits of the plaintiffs Establishment
Clause claim.
2
I have omitted internal alterations, citations, and quotation
marks here and throughout this dissent, unless otherwise noted.
192a
3
The pleadings make only one religious reference with respect to
Doe #3: The anti-Muslim attitudes that are driving this Executive
Order have caused me stress and anxiety and made me question
whether I even belong in this country despite everything I have
sacrificed and invested in making a life here. J.A. 310.
195a
4
Suhre is a religious display case, a type of Establishment Clause
claim that arguably belongs in its own category. See 131 F.3d at
1086 (Religious display cases are an even more particularized
subclass of Establishment Clause standing jurisprudence.).
200a
5
The out-of-circuit cases on which the majority also relies are
likewise inapposite for the same reasons that distinguish Suhre and
Moss. See Awad v. Ziriax, 670 F.3d 1111, 1116, 1122 (10th Cir.
2012) (analyzing a proposed constitutional amendment that would
prevent Oklahoma state courts from considering or using Sharia
law); Catholic League for Religious and Civil Rights v. City and
Cty. of San Francisco, 624 F.3d 1043, 1048-53 (9th Cir. 2010)
(reviewing standing in a case challenging a city resolution that
ordered Catholics in San Francisco to cease discriminating against
same-sex couples).
202a
And that is not the case here simply because the Pres-
ident is the party signing an order.
Despite the majoritys giving short shrift to In re
Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008), the
case is directly on point. There, [a] group of Protes-
tant Navy chaplains sued the Navy, alleging that the
Navys operation of its retirement system discrimi-
nates in favor of Catholic chaplains in violation of the
Establishment Clause. Id. at 758. 6 The plaintiffs
conceded that the Navy did not deny them any bene-
fits or opportunities on account of their religion. Id.
at 760. Rather, they maintained that other chaplains
suffered such discrimination. Id. The plaintiffs con-
tended that they had standing because they ha[d] been
subjected to the Navys message of religious prefer-
ence as a result of the Navys running a retirement
system that favors Catholic chaplains. Id. The D.C.
Circuit rejected this argument and found that they did
not have standing based on their exposure to the
Navys alleged message of religious preference. Id.
at 761. Like the Protestant Navy chaplains, the plain-
tiffs here claim offense to a message directed at others,
who happen to be nationals of other countries. The
plaintiffs claims of stress or stigmatization are subjec-
tive reactions, not direct contact with the Executive
Order, and amount to disagreements with a govern-
ment policy. See Moss, 683 F.3d at 604-05. As a
result, the plaintiffs claim of injury by way of stigma is
6
It is irrelevant that In re Navy Chaplaincy is a favoritism case
as opposed to a condemnation case as alleged here, as they are two
sides of the same Establishment Clause coin.
203a
7
Some of the plaintiffs, including Doe #1, have expressed fear
that they will be denied reentry into the country if they travel to
the subject countries to visit their family while the Executive Order
is in effect. This fear is unfounded and contradicted by the plain
terms of the Executive Order. Does #1 and 3 and Meteab are all
lawful permanent residents. Section 3(b)(i) of the Executive Order
exempts any lawful permanent resident of the United States from
the temporary suspension of entry.
8
In its attempt to distinguish In re Navy Chaplaincy, the majori-
ty implicitly holds that stigma alone is not enough to support
standing. The majority states that, contrary to the Governments
assertion, all Muslims in the United States do not have standing to
bring this suit. Only those persons who suffer direct, cognizable
injuries as a result of EO-2 have standing to challenge it. Majority
Op. 40 n.11. The majority avers that Doe #1 is feeling the direct,
painful effects of the Second Executive Orderboth its alleged
message of religious condemnation and the prolonged separation it
causes between him and his wifein his everyday life. Id. at 40.
The majority is right in that regardstigma is not enough.
204a
9
Although not the focus of this dissent, I also would find that
Doe #1 does not have standing to bring an INA claim; he lacks a
concrete injury. It is pure speculation whether Doe #1s wife will
receive a visa. Doe #1 has presented no evidence showing that his
wife is likely to receive a visa, much less when, but for the opera-
tion of the executive order. Or that the executive order would
tangibly affect the processing of her application in any way. See
Opening Br. 19-20 (Likewise, Doe #1s wife did not have her visa
interview scheduled before the Revoked Order took effect, and had
already been waiting roughly six weeks, making it similarly specu-
lative whether the 90-day pause will affect her.); see also The
Immigrant Visa Process: Interview, U.S. Dept of State, https://
travel.state.gov/content/visas/en/immigrate/immigrant-process/
interview.html (last visited May 23, 2017) (saved as ECF opinion
attachment) (stating that, although [m]ost appointments are set
within 60 days of [the National Visa Centers] receipt of all requested
documentation[,] . . . we cannot predict when an interview
appointment will be available, and warning that [t]here may be a
wait of several months for an interview date to become available
(emphasis added)). Nor has the Government denied the visa appli-
cation of Doe #1s spouse.
Any injury caused by the Executive Order is not redressable
because an injunction will not establish that Doe #1s wife will
receive a visa, as exemplified by her current status. See The
Immigrant Visa Process: Interview, supra (Based on U.S. law,
not everyone who applies for a visa will be found eligible to come to
the United States.). Doe #1 does not have standing under the
INA.
205a
10
Similarly, there is no feasible way to determine, except by pure
speculation, how or whether the Executive Orders visa waiver pro-
cess might affect a particular visa application. Nothing in the rec-
ord supports the majoritys conclusion that pursuing a waiver
would affect any plaintiff. Rather, the majority has arbitrarily
substituted its conjecture for evidence. The visa waiver process
could just as likely allow Doe #1s wife to obtain her visa as not
during the temporary suspension period.
11
The district court did not determine whether other individual
plaintiffs or the organizational plaintiffs have standing to bring the
Establishment Clause claim. That would be a matter to be con-
sidered by the district court in the first instance in any further
proceedings.
APPENDIX B
MEMORANDUM OPINION
(208a)
209a
1
On February 22, 2017, Plaintiffs filed a Motion for a Prelimi-
nary Injunction of 5(d) of the Executive Order, ECF No. 64,
requesting that the Court enjoin a specific provision of the First
Executive Order. With the agreement of the parties, the Court
set a briefing and hearing schedule extending to March 28, 2017.
The Court will resolve that Motion, which the parties have agreed
should be construed to apply to the successor provision of the
Second Executive Order, in accordance with the previously estab-
lished schedule.
212a
2
In Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006), cited by
Defendants, the Court criticized a dissents reliance on press
statements by senior government officials, rather than the Presi-
dents formal written determination mandated by the Uniform
Code of Military Justice, to provide justification for the govern-
ments determination that applying court-martial rules to a terror-
ism suspects military commission was impracticable. Id. at 624 &
n.52. It did not address what facts could be considered in assessing
government purpose under the Establishment Clause, where courts
have held that facts outside the specific text of the government
decision may be considered. See Edwards, 482 U.S. at 594-95.
249a
ORDER
For the reasons stated in the accompanying Memo-
randum Opinion, the Court finds that the Plaintiffs
have standing to maintain this civil action and have
established that they are likely to prevail on the merits,
that they are likely to suffer irreparable harm in the
(262a)
263a
(265a)
266a
* * * * *
(3) Security and related grounds
* * * * *
(B) Terrorist activities
(i) In general
Any alien who
(I) has engaged in a terrorist activity;
(II) a consular officer, the Attorney Gen-
eral, or the Secretary of Homeland Security
knows, or has reasonable ground to believe,
is engaged in or is likely to engage after
entry in any terrorist activity (as defined in
clause (iv));
(III) has, under circumstances indicating
an intention to cause death or serious bodily
harm, incited terrorist activity;
(IV) is a representative (as defined in
clause (v)) of
(aa) a terrorist organization (as defined
in clause (vi)); or
271a
(ii) Exception
Subclause (IX) of clause (i) does not apply
to a spouse or child
(I) who did not know or should not rea-
sonably have known of the activity causing
the alien to be found inadmissible under this
section; or
(II) whom the consular officer or Attorney
General has reasonable grounds to believe
has renounced the activity causing the alien
to be found inadmissible under this section.
(iii) Terrorist activity defined
As used in this chapter, the term terrorist
activity means any activity which is unlawful
under the laws of the place where it is com-
mitted (or which, if it had been committed in
the United States, would be unlawful under
the laws of the United States or any State)
and which involves any of the following:
(I) The highjacking or sabotage of any
conveyance (including an aircraft, vessel, or
vehicle).
(II) The seizing or detaining, and threat-
ening to kill, injure, or continue to detain,
another individual in order to compel a third
person (including a governmental organiza-
tion) to do or abstain from doing any act as
an explicit or implicit condition for the
release of the individual seized or detained.
273a
* * * * *
(f) Suspension of entry or imposition of restrictions by
President
Whenever the President finds that the entry of any
aliens or of any class of aliens into the United States
would be detrimental to the interests of the United
States, he may by proclamation, and for such period as
he shall deem necessary, suspend the entry of all aliens
or any class of aliens as immigrants or nonimmigrants,
or impose on the entry of aliens any restrictions he may
deem to be appropriate. Whenever the Attorney Gen-
eral finds that a commercial airline has failed to comply
with regulations of the Attorney General relating to
requirements of airlines for the detection of fraudulent
documents used by passengers traveling to the United
States (including the training of personnel in such
detection), the Attorney General may suspend the
277a
* * * * *